Farrell v Triangle Equities Dev. Co., LLC

[*1] Farrell v Triangle Equities Dev. Co., LLC 2009 NY Slip Op 52615(U) [26 Misc 3d 1201(A)] Decided on December 24, 2009 Supreme Court, Queens County Weiss, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 24, 2009
Supreme Court, Queens County

Francis Farrell and Eileen Farrell, Plaintiffs,

against

Triangle Equities Development Co., LLC, Target Corporation, Jeffrey M. Brown Associates, LLC and Jeffrey M. Brown Associates, Inc., Defendants.



316092007

Allan B. Weiss, J.

Plaintiff Francis Farrell was employed as a journeyman electrician by nonparty B & G Electrical Contractors of New York, Inc. (B & G Electrical). B & G Electrical had a subcontract with defendants Jeffrey M. Brown Associates, Inc. and/or Jeffrey M. Brown Associates, LLC (JMB Associates), the general contractor hired by defendant Target Corporation (Target), to perform electrical work in the construction of a building to be used, among other things, as a Target store. The premises was owned by defendant Triangle Equities Development Co., LLC (Triangle Equities), and Target was a prospective tenant of the building. On August 23, 2007, plaintiff Francis Farrell was allegedly injured when he fell as he descended a temporary wooden staircase while carrying construction materials from a material locker. Plaintiff Francis Farrell, and his wife suing derivatively, subsequently commenced this action against Triangle Equities, Target, and JMB Associates under Labor Law §§ 240(1), 241(6), and 200, and common-law negligence.

With respect to the branch of defendants' motion for summary judgment dismissing the Labor Law § 240(1) cause of action, defendants assert that Labor Law § 240(1) is inapplicable because plaintiff Francis Farrell's injuries did not arise from an elevation-related risk covered by [*2]the statute. While a temporary wooden staircase is not one of the safety devices enumerated in the statute, it was being utilized by plaintiff Francis Farrell at the time of the accident as the functional equivalent of a ladder in order to descend the landing of the material locker to reach the ground level of the construction site four feet below (see Frank v Meadowlakes Dev. Corp., 256 AD2d 1141 [1998]; Wescott v Shear, 161 AD2d 925 [1990], appeal dismissed 76 NY2d 846 [1990]). Plaintiff Francis Farrell was, thus, subject to an elevation-related hazard contemplated by Labor Law § 240(1) since the temporary staircase was being used as a means of access to different levels of the work site, namely the material locker where the injured plaintiff's supplies were stored and the ground level of the work site (see e.g. McGarry v CVP 1 LLC, 55 AD3d 441 [2008]; see also Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). Indeed, plaintiff Francis Farrell testified at his deposition that, at the time he fell down the steps of the temporary staircase, he was carrying construction materials needed to start his work day. Moreover, contrary to defendants' contention, although the height from which plaintiff Francis Farrell fell was no more than two feet above the ground, the determination as to whether Labor Law § 240(1) applies does not depend upon the distance that a worker falls (see Megna v Tishman Constr. Corp., 306 AD2d 163 [2003]; Siago v Garbade Constr. Co., 262 AD2d 945 [1999]). Given that defendants failed to meet their prima facie burden, the sufficiency of plaintiffs' opposition papers need not be considered (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

To recover under Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision, which sets forth specific, applicable safety standards, in connection with construction, demolition, or excavation work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-505 [1993]). In the bill of particulars, plaintiffs allege violations of Industrial Code provisions 12 NYCRR 23-1.5, 23-1.7(e), 23-1.7(f), 23-1.11, 23-1.15, 23-1.30, 23-2.1, and 23-2.7 and Administrative Code of the City of New York §§ 27-127 and 27-128. The portion of plaintiffs' Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.5 and 23-1.30 is hereby dismissed because plaintiffs concede that 12 NYCRR 23-1.5 merely sets forth general safety standards and 12 NYCRR 23-1.30 is inapplicable in this case.

Defendants established, prima facie that Industrial Code provisions 23-1.7(e), 23-1.11, 23-1.15, 23-2.1, and 23-2.7 do not apply to the facts of the instant case. In opposition, plaintiffs failed to raise a triable issue of fact. Industrial Code provision 23-1.7(e), which requires passageways and working areas to be kept free from the accumulation of dirt, debris, and other conditions which could cause tripping, is inapplicable here because plaintiff Francis Farrell's fall down the temporary staircase was not the result of tripping on such obstructions. Likewise, Industrial Code provision 12 NYCRR 23-2.1, which relates to the storage of material or equipment, is inapplicable because plaintiff Francis Farrell's accident did not involve tripping on building materials or debris. In addition, 12 NYCRR 23-1.11 is inapplicable because plaintiffs do not claim that the accident was caused by defects in the lumber and nail fastenings used in the construction of the temporary staircase. Similarly, 12 NYCRR 23-1.15, which sets forth standards for safety railings, does not apply here because plaintiffs do not allege that plaintiff Francis Farrell's accident was the result of an inadequate safety railing on the temporary staircase. [*3]Finally, 12 NYCRR 23-2.7, which sets forth the requirements for stairways during the construction of buildings, also does not apply to the facts of this case. While plaintiffs claim that the vertical distance between the steps of the subject temporary staircase were uneven and unbalanced, none of the subsections of Industrial Code provision 12 NYCRR 23-2.7 indicate the requirements for the rise differential between each step of a temporary stairway.

Defendants failed to establish their prima facie entitlement to judgment as a matter of law that Industrial Code provision 12 NYCRR 23-1.7(f) is inapplicable in the instant case (see Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763 [2009]). This regulation indicates that stairways, ramps, or runways shall be provided as the means of access to working levels above or below ground. According to plaintiff Francis Farrell's deposition testimony, the injured plaintiff was using the temporary staircase to access different levels of the work site, namely the landing of the material locker and the dirt floor of the work site approximately four feet below. Inasmuch as the injured plaintiff further testified at his deposition that the steps of the temporary stairway were unbalanced and uneven, there is a triable issue of fact as to whether defendants provided a safe stairway for plaintiff Francis Farrell to use (see Miano v Skyline New Homes Corp., 37 AD3d 563 [2007]). Therefore, plaintiffs' Labor Law § 241(6) cause of action is dismissed only to the extent that it is predicated on a violation of Industrial Code provisions 12 NYCRR 23-1.5, 23-1.30, 23-1.7(e), 23-1.11, 23-1.15, 23-2.1, and 23-2.7.

Furthermore, defendants established their prima facie entitlement to judgment as a matter of law that they are not liable to plaintiffs under Administrative Code of the City of New York §§ 27-127 and 27-128. In opposition, plaintiffs failed to raise a triable issue of fact. Section 27-127 requires, generally, that buildings and their parts be maintained in a safe condition, and section 27-128 establishes owner responsibility for the safe maintenance of buildings. The aforementioned provisions are not applicable to Target and JMB Associates because they only impose a duty on building owners to safely maintain the premises (see Weiss v City of New York, 16 AD3d 680 [2005]). Here, it is undisputed that the subject property was owned by Triangle Equities. Additionally, with respect to Triangle Equities, Administrative Code of the City of New York §§ 27-127 and 27-128 are nonspecific and reflect only the general duty to maintain property in a safe condition (see Reddy v 369 Lexington Ave. Co., L.P., 31 AD3d 732 [2006]; Jang Hee Lee v Sung Whun Oh, 3 AD3d 473 [2004]). As such, plaintiffs' claims against defendants under Administrative Code of the City of New York §§ 27-127 and 27-128 are dismissed.

Defendants met their prima facie burden of demonstrating their entitlement to summary judgment dismissing those claims alleging a violation of Labor Law § 200 and common-law negligence. In opposition, plaintiffs failed to raise a triable issue of fact. Where, as here, a claim arises out of alleged defects or dangers in the subcontractor's methods or materials rather than the condition of the premises, recovery against the owner or general contractor cannot be had under the common-law or Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (see Cambizaca v New York City [*4]Tr. Auth., 57 AD3d 701 [2008]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [2006]). At his deposition, plaintiff Francis Farrell stated that the temporary staircase at issue was owned and constructed by his employer, B & G Electrical, and that only his supervisors, who were also employees of B & G Electrical, gave him instructions or directions regarding the performance of his work at the site. In addition, Phil Hogue, the senior owners' site representative for Target, testified at his deposition that he would notify JMB Associates if he observed an unsafe condition at the work site, but he did not have the authority to instruct a subcontractor's workers how to perform their work. Moreover, the retention of JMB Associates' authority to generally supervise the work, to stop a subcontractor's work if a safety violation is noted, or to ensure compliance with safety regulations does not rise to the level of supervision and control necessary to impose liability pursuant to Labor Law § 200 and common-law negligence (see Kajo v E. W. Howell Co., Inc., 52 AD3d 659 [2008]; Cambizaca, 57 AD3d at 702; Dennis v City of New York, 304 AD2d 611 [2003]; Warnitz v Liro Group, Ltd., 254 AD2d 411 [1998]).

Accordingly, the branch of defendants' motion for summary judgment dismissing the Labor Law § 240(1) cause of action is denied. In addition, the branch of defendants' summary judgment motion on the Labor Law § 241(6) cause of action is granted only to the extent that the claim is predicated on a violation of Industrial Code provisions 12 NYCRR 23-1.5, 23-1.30, 23-1.7(e), 23-1.11, 23-1.15, 23-2.1, and 23-2.7 and Administrative Code of the City of New York §§ 27-127 and 27-128. In all other respects, that branch of defendants' summary judgment motion is denied. The branch of defendants' motion for summary judgment dismissing plaintiffs' claims under Labor Law § 200 and common-law negligence is granted.

Dated: December 24, 2009

J.S.C.